“I could have a lot of fun with this case,” the judge said Tuesday, as he riffed about opportunities that Dominion lawyers might have cross-examining witnesses.
Attorneys often seek to exclude evidence and arguments that can be presented to a jury via pretrial motions. One Fox News effort sought to exclude mention of specific threats that Dominion employees received after the network aired claims that the company’s voting machines stole the 2020 presidential election from Donald Trump. Inclusion of such material, Fox News lawyers argued, would “provoke a desire to punish Fox for the actions of unrelated third parties.” On this matter, Davis ruled in favor of Fox News.
One of Dominion’s motions aimed straight at the heart of Fox News’s defense. In filing after filing, Fox News has insisted that actions such as inviting Trump-aligned lawyers Sidney Powell and Rudy Giuliani on air to voice their theories about a Dominion election conspiracy responded to the newsworthiness of allegations from Trump and his other allies. Media organizations, the network argues, “cannot be held liable for accurately reporting newsworthy allegations made by newsworthy figures, even if those allegations ultimately turn out to be false.”
Not so fast, Dominion retorted. “That is not the law,” its lawyers argued in a pretrial motion. Dominion asked the court to preclude Fox News from arguing “newsworthiness” as a factor in determining its liability under the legal standard in defamation cases. On Tuesday, Davis prohibited Fox News lawyers from making such arguments but said witnesses could mention newsworthiness as a consideration in their editorial decision-making. The court, Davis said, “can’t stop a person from saying, ‘I thought it was newsworthy.’ ”
Justin Nelson, an attorney for Dominion, replied, “Of course, everything is newsworthy. That’s not the issue the jury’s going to decide.”
Don’t despair, was effectively the judge’s response. Any Fox witness who cites newsworthiness as a reason to host commentators who alleged ballot fraud, Davis said, could be open to some heady cross-examination. For example, the judge suggested, Dominion attorneys could take the newsworthiness claim at face value and ask whether the network had invited multiple experts to analyze the stolen-election claims. “Is the president-elect newsworthy? Did you have him on?” Davis said, proposing one approach.
And that’s when the judge made his comment about having fun with the case.
Davis is on to something. Fox News is in a legal-logical bind that could produce more embarrassing headlines over the course of the trial, for which the court has slated six weeks. “Newsworthiness” is essential to Fox’s defense — or at least to its explanation of why it featured several guests who peddled lies about the presidential election. And if Fox News takes “newsworthiness” seriously, where were all the “fair-and-balanced” segments in which conspiracy theorists faced opposing voices equipped with debunking information?
Fox News has long pointed to certain segments broadcast after Election Day in which truth was voiced about Dominion and the election outcome. Anchor Eric Shawn did such a segment; prime-time host Tucker Carlson told his viewers that Powell had failed to provide him evidence backing up her claims; there were other such instances. In a pretrial motion, Dominion requested that the court preclude Fox News from discussing such material: “Allowing Fox to point to non-accused broadcasts as excusing its defamatory broadcasts would contravene the law, confuse and mislead the jury, and prejudice Dominion,” reads the motion.
A Fox attorney argued that citing those broadcasts would enable the network to rebuff Dominion claims that Fox News “executives at the highest level make a decision to promote the fraud and to prevent fact-checking.”
Yet Davis snapped at the notion, asking if Fox News had ever broadcast a retraction. (It had not.)
He pointed out that under the relevant law, there’s no protection for publishing damaging falsehoods alongside the truth. “You could then get the ability to harm people with false statements by merely putting out true statements,” Davisn said. “I beat this guy up but I give to charity, so I should be absolved.”
This is how two days of nitty-gritty lawyering has played out in Davis’s courtroom. Although Davis decided in favor of Fox News on some key points — excluding the threat language and discussion of the Jan. 6, 2021, insurrection at the Capitol — he sanctioned Fox for withholding evidence after Dominion claimed that it hadn’t received germane materials from the company. Fox News issued a statement saying that it produced certain “supplemental information … when we first learned it.”
And Davis even snarked a bit amid discussion of Maria Bartiromo, a longtime Fox host who appears in several broadcasts at issue in the lawsuit — and whose emails show a clear allegiance to Trump. “She’s clearly neutral,” the judge deadpanned on Wednesday. The assembled lawyers and journalists didn’t know how to react, prompting the judge to say, “I’m being sarcastic.”
The legal and PR disasters are compounding for Fox News. Surely the network girded itself for some unfavorable headlines stemming from the lawsuit. But the discovery phase of proceedings produced a bonanza of revelations, documenting how Fox executives steered programming not according to the facts but for their audience’s thirst for comforting falsehoods. And now comes the allegation that Fox wasn’t forthcoming with all the evidence of its misdeeds.
As if there were a bottom to that supply.
